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The Anti-Boycott Law and Free Speech in Israel

JURIST Guest Columnist James Friedman of the University of Maine School of Law says that the recent passage of the anti-boycott law in Israel does more damage to free speech and the legitimacy of Israel's democratic system than the boycotts themselves...

On July 11, the right wing coalition government of Israeli Prime Minister Benjamin Netanyahu enacted a law "To prevent Harm to the State of Israel by Means of Boycott." The law was proposed by Yisrael Beiteinu, a nationalist party that is part of the governing coalition, and was endorsed by Netanyahu. The Knesset voted 47-38 to enact the law, a vote taken after intense, acrimonious debate.

What made the enactment of the law so controversial was its punishment of free speech. Specifically, the law calls for civil and administrative penalties against anyone in Israel's jurisdiction who boycotts or "calls for boycotts" of Israel, or "one of its institutions," or "an area under its control."

It is this last clause that is at the heart of the Israeli political dispute which produced the law. The areas referred to are Jewish settlements on the West Bank. Significant numbers of Israelis who oppose settlement of the West Bank, or oppose some of the settlements on the West Bank, have boycotted products produced by such settlements. Israeli performing artists have refused to perform in the auditoriums of West Bank settlements.

Netanyahu justified his support of the law because, in his words, these boycotts "delegitimized Israel." In short it is Netanyahu's view that those who disagree with his government's West Bank policy cannot exercise their right of free speech to call for West Bank boycotts because such speech is a threat to Israel. It evidently did not occur to him that limitation upon freedom of speech might pose a greater threat of delegitimation of Israel's democracy.

Everyone is for free speech except when they're not. When people are appalled or genuinely frightened by ideas, belief in free speech tends to disappear. So it is worth recalling some fundamental elements of free speech theory to clarify why this Israeli law is a terrible blunder, and to explain why Netanyahu has turned free speech theory on its head.

English philosopher John Stuart Mill, writing in the mid-nineteenth century, made some of the best known arguments for free speech. First, Mill argued in his essay On Liberty, that to justify prohibition of the dissemination of ideas, to censor thought and speech, one must logically assume that the censor is infallible. The censor must possess the truth with certainty, if truth rather than authority is to be our guide. Mill simply did not believe an infallible human being ever existed.

A second idea Mill put forth was that if people were not forced to refute others' opinions, their own opinions would become "husks" of their former selves. People would believe as they did for reasons they did not know. Interestingly, he gave Christianity in England as an example of a popular belief that people had lost the ability to justify or explain. Does a triangle contain angles totaling 180 degrees because your high school teacher said so, or can you explain why? These ideas, and others, led Mill to his famous argument for a "marketplace of ideas" as the best way to seek truth. If the result of the marketplace was not certain, it was more likely to be right than truth declared by censoring competing ideas.

In Masses Publishing v. Patten, Judge Learned Hand was faced with the question whether a leftist magazine's advocacy of draft resistance during World War I was lawful under the US Espionage Act. Hand concluded that such active dissent to the government's war policy was lawful, and he produced a remarkable paragraph explaining why:

Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them into execution ... Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of political agitation which in normal times is the safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.
Judge Hand was arguing in short that freedom of speech is a functional requirement of democratic government. Ten years later, in Whitney v. California, Justice Louis Brandeis made an eloquent argument for free speech which went beyond Hand's functional argument. The question was whether California could criminalize socialist and communist revolutionary parties. Justice Brandeis provided another basic argument for freedom of speech: "[The Framers] believed that the final end of government was to make men free to develop their faculties." Justice Brandeis's assertion was that government is to provide the freedom necessary for persons to develop their abilities and to define for themselves who they are. Today, we would call this the development of personal autonomy and the self. There is no more concise definition of the purpose of the liberal state, and the freedom necessary to produce autonomous individuals is to be extended to all persons, including radical political dissidents.

Free speech theory suggests therefore that freedom of speech is necessary to understand what we think (Mill), necessary for democracy to function (Hand), and necessary to develop the human personality (Brandeis). There must be an extraordinary burden upon government before it can justifiably punish thought and speech.

Nearly 350 years ago, in 1670, the great (albeit heretical), Jewish philosopher Spinoza published the Theological-Political Treatise, a criticism of biblical literalism and the first justification of the liberal state. He necessarily published it anonymously, for even in his home of the Netherlands, the book was seen as viciously evil. Despite anonymous publication, Spinoza was later charged with advocacy of atheism, defense of science, skepticism and freedom of speech, not the first time such charges had been leveled against him.

The Netanyahu government obviously forgot to read Chapter 20 of the Treatise. It is entitled "It is shown that in a free commonwealth every man may think what he pleases, and say what he thinks."

James Friedman is a professor of law at the University of Maine School of Law. He teaches courses in constitutional law, philosophy, labor law and terrorism. He researched the legal and ethical issues posed by counterterrorism as a visiting professor at the University College Galway, Ireland, as a visiting scholar at The Hebrew University of Jerusalem, and as a visiting professor at the United States Military Academy at West Point.

Suggested citation: James Friedman, The Anti-Boycott Law and Free Speech in Israel, JURIST - Forum, July 31, 2011, http://jurist.org/forum/2011/07/james-friedman-boycott-law.php.

This article was prepared for publication by JURIST's academic commentary editorial staff. Please direct any questions or comments to them at academiccommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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